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Tag Archives: workplace violence

YouTube’s experience on April 3, 2018, in which a non-employee with no direct link to the company entered the workplace and started shooting a firearm at employees, highlighted concern for an “active shooter” scenario in the workplace.

As a result of increased gun violence, state legislatures have been pushing gun control legislation, including laws that would ban bump stocks and high capacity magazines, raise the minimum age to buy a gun to 21, or even ban people from carrying, keeping, bearing, transporting or possessing an assault weapon. Some proposed legislation is not prohibitive, but rather increases the cost to sell guns by requiring a gun dealer licenses, requires certain security protections for gun shops, or increases the waiting time for semi-automatic firearms.

For the most part these proposed laws and ordinances regulate an individual’s access to guns and do not directly change or impact the employer-employer relationship. However many state laws regarding concealed and/or open carry of firearms in public do implicate employer and employee rights regarding firearms. Many of these laws allow employers to prohibit firearms from being carried in buildings and on the property and premises of employers. Some of those laws also allow employers under certain circumstances to prohibit firearms in parking lots. A majority of the laws though, like Illinois’ Concealed Carry Act, require employers to allow firearms to be stored in vehicles in the parking lot, but allow employers to prohibit employees from displaying and brandishing a firearm in the parking lot, unless for the sole purpose of storing the firearm.

So, what should employers be paying attention to and doing? First and foremost, they should review their policies and procedures, as well as state and local laws, to determine how and what they want to do with regard to firearms. Regardless of whether an employer allows concealed carry in the workplace or prohibits concealed carry, there are certain policies and procedures that they should put into place. This includes specifically addressing workplace violence and prohibited uses of firearms in the workplace. Employers that allow employees to conceal and carry should also consider how firearms are stored in the workplace, limitations on carrying, and whether an application process is needed so the company knows who may be carrying a concealed weapon. For employers that wish to prohibit concealed carry or firearms in the workplace, they should consider whether any carve outs are needed to allow certain positions, such as security guards, to carry a firearm. Additionally, all employers should consider a plan to address what would occur if a weapon is brought into the workplace. Much like a fire plan, the hope is that you never have to use it, but for safety purposes, employers should consider an “active shooter” plan and provide training or walkthroughs for employees. Likewise, employers should consider what kind of potential liability and insurance coverage they have for these situations. In some cases, workers’ compensation insurance may cover injuries related to workplace violence and in others commercial general liability insurance or other plans may be needed.

The underlining message is that employers should consider and take actions to address this issue and the possibility of workplace violence involving a firearm.

One of the first questions I ask when providing drug and alcohol training to managers, supervisors and employees is “What is the most commonly used illegal drug?” Typically, the response that I get will be alcohol (albeit not illegal) or marijuana. What most do not realize until the training is that prescription drugs, in particular opioids, are the most commonly abused illegal drug. Prescription opioids include hydrocodone, oxycodone, morphine, codeine and fentanyl, while illegal opioids include heroin.

Opioid use in the United States has started to take on a whole new form and is now commonly referred to as the opioid epidemic. Illinois has not escaped the opioid epidemic; in 2016 there were 2,278 drug overdose deaths of which over 80% (1,826) were opioid related. The number of opioid related deaths in 2016 was an increase of over 30% of the opioid related deaths in 2015 and an increase of over 70% of the number of opioid related deaths in 2013.

In looking at these numbers, it is important to understand that these are only the deaths – not the actual number of individuals using or abusing opioids. In a recent study by the National Safety Counsel, over one in three Illinois residents (35%) reported being impacted by opioid/heroin use by knowing someone (self, family/friend, co-worker/co-workers’ family, or neighbor/neighbor’s family) that started using opioids/heroin, became addicted to opioid/heroin, survived an opioid/heroin overdose or had died from an opioid/heroin overdose. Indeed, one issue with the opioid epidemic is that the gateway to opioid use does not always come from illegal activities, but can start out with a legitimate legal prescription. When there is a valid use for a prescription drug, an individual can feel like they are not doing anything wrong and their use can quickly turn into a slippery slope of addiction, activities that negatively impacts their work performance and potentially illegal activities. As a result of this, the opioid epidemic does not discriminate and can be found across all demographics, industries and positions.

One of the concerns with opioids for employers is that it is more difficult to tell if someone is under the influence or using opioids or heroin than other more traditional drugs. For instance, opioids and heroin do not come with symptoms or indicators that are easy to perceive like with alcohol – a smell, shaking hands and movements, and behavior changes; or with marijuana – a smell, red eyes, delayed reaction time, anxiety, and lack of coordination. With opioids, it is often difficult for employers to make the connection between an employee appearing groggy, sleepy or forgetful in the workplace to being linked to drug use. Indeed, what employers will typically see, if anything at all, is a gradual decline in an employee’s attendance and performance, until the employee loses their job or stops coming to work altogether.

The traditional tool of employers to identify and prevent drug and alcohol use within the workplace is drug testing. Pre-hire drug testing can be effective in preventing illegal opioid users from joining the workforce. However, drug testing is not always effective where the opioid user has a legal prescription or where the individual is not yet an opioid user. Reasonable suspicion drug testing can also be effective, but first requires reasonable suspicion of opioid use which can be difficult to identify.

So what does this leave? First and foremost, employers should re-evaluate their drug policies and testing procedures and understand the potential legal implications. For example, drug testing can be modified to test for legal prescription medications, but in order to avoid a violation of the ADA the applicant or employee must be able to provide an explanation for the positive drug test, such as a prescribed medication. Additionally, employers must realize that even if the employee is using prescription medication, there may be an underlying medical condition that they need to be aware of to avoid any kind of disability discrimination claim.

Next, employers should consider questioning its health care benefit carrier and workers’ compensation carrier on what actions they are taking to address the opioid epidemic and collaborating with them on any specialized programs or options for addressing. This can include learning about whether the carrier has programs for the conservative use and risk of prescription opioids, an opioid management program and/or a prescription benefit management program, which can help in preventing prescription medication abuse and identify the abuse of prescription medications. In doing so, employers should also consider investing in an employee assistance program (EAP), which can help employees avoid or address addiction.

Another investment that can pay dividends is management and employee education. Better training and education for not only management, but also employees regarding the impacts of opioids, how to identify opioid use and how to address opioid abuse. Management training can help make management more aware of how to identify potential issues before they occur and get employees help before it escalates to more serious problems. This includes not only taking into consideration the symptoms of opioid and other drug use, but also recognizing changes in how employees are acting, their performance, their attendance, any recent injuries they have had and any other issues that could indicate drug abuse. Employee training can help employees understand the danger of opioids, how the use of legal use of prescription opioids can lead to addiction, and what steps can be taken to seek assistance. Of course, any training should be tailored to include information regarding the Company’s policies, drug testing, benefit programs and reassurances regarding the Company’s commitment to providing confidential and accessible help and treatment.

Finally, one thing to remember is that despite the high numbers of deaths in 2016 in Illinois, Illinois is still behind many states in its exposure to the opioid epidemic. Indeed, in some places manufacturing employers have found using pre-hiring drug testing was not effective. The reason for this is it significantly increased the number of applicants they have had to go through in order to hire for a position or was making it near impossible to fill their staffing needs due to applicants not returning after learning there was drug testing or applicants consistently failing the drug test.

The recent instances of violence in the workplace remind us of the complex task facing employers. Employers must maintain a safe work environment for employees while operating within the parameters of the many federal and state laws that may protect certain employee conduct. More importantly, because an employer has no objective “litmus test” for predicting which employee may become violent under particular triggering circumstances, there is no foolproof way to effectively eliminate the hazard.

Employers today can find themselves in a seemingly untenable dilemma when they have violence threaten to invade their workplace, as disciplining or terminating the problem employee can result in a legal claim as well.

In Mayo v. PCC Structurals, Inc., 795 F.3d 941, 942 (9th Cir. 2015), the employer, PCC, terminated the plaintiff, Thomas Mayo, after he made threatening comments to three co-workers that he was going to bring a gun to work and start “shooting people.” After the threats were reported, the employer took the proper precautions by immediately suspending the plaintiff, barring him from company property, and notifying the police. The police took him to the hospital for medical treatment on the basis that he was an imminent threat to himself and others.

After taking three months of leave under the FMLA and Oregon’s equivalent state law, a treating psychologist cleared Mayo to return to work, but recommended a new supervisor assignment. Instead, the employer terminated Mayo. Plaintiff then sued PCC alleging he was terminated because of his disability in violation of the Americans with Disabilities Act (ADA) and state law.

In Mayo v. PCC, the United States Court of Appeals for the Ninth Circuit held that an employee who made serious and credible threats of violence against coworkers is not a qualified individual with a disability under the ADA or Oregon’s disability discriminatory law. In granting summary judgment to the employer, the Court held that an essential function of almost every job is the ability to appropriately handle stress and interact with others, and that an individual is not qualified and cannot perform the essential functions of the job if he or she threatens to kill co-workers – regardless of whether such threats stem from a mental condition or disability.

What should employers do?

Against this potential liability minefield, an employer should develop an effective written workplace violence preventative policy. For those who already have policies in place, it would be a good idea to review your policies and practices with your legal counsel to make sure that these issues and any potential concerns are properly addressed.

Ask yourself the following questions to see if your policy needs to be modified in light of the recent lawsuits:

Do your policies advise employees that they will be subject to discipline (up to and including termination) if they “fail to foster collegiality, harmony, positive attitude, and good relations in the workplace?”

Do you have a statement that there is “zero tolerance” regarding threats or acts of violence?

Do your managers/supervisors know what steps should be taken if there is a threat, complaint of bullying or violence?

Have your managers, supervisors and employees been trained on identifying signs and symptoms of behavior which may predict potential violence (erratic behavior; comments regarding violence, homicide or suicide; provocative communications; disobedience of policies and procedures; presence of alcohol, drugs or weapons on the worksite; evidence of violent tendencies or abuse of alcohol or drug use)?

Have your managers and supervisors been trained and regularly reminded about the importance of good documentation and dangers of bad documentation?

On April 9, 2014, the Illinois Senate unanimously passed amendments to the Illinois Violence Prevention Act (“VPA”), sending the bill to the House for consideration once the General Assembly reconvenes on April 29, 2014. The VPA, effective only since January 1, 2014, is meant to enable employers to protect its workforce, customers, guests and property by limiting access by potentially violent individuals (“PVI”). Under the Senate-approved amendments, an employer would obtain, through any state circuit court, a workplace restraining order to prohibit further threatened or actual violence by a PVI.

To obtain the restraining order, the employer would need to file an affidavit that shows (i) an actual or credible threat of violence by the PVI towards an employee to be carried out at the workplace, and (ii) that the employer (or its employees) has or will suffer irreparable harm at the workplace. Where the employer seeks a restraining order as a result of an employee being a victim of domestic violence, the employer must take additional steps of notifying the employee in writing of its intent to seek the order, and communicate directly and “verbally” with the employee to address other safety or well-being concerns that may result or whether the restraining order would interfere with the employee’s own legal actions.

The restraining order may prohibit the PVI’s presence in the workplace, and order the PVI to pay the employer for losses including property repair or replacement, attorneys’ fees, and court costs. Under the VPA amendments, there is no right to a trial by jury in any proceeding to obtain, modify, vacate, or extend the restraining order. An emergency order would be effective for 14 to 21 days and other restraining orders would be effective for a fixed period of time not to exceed a year.

However, the amendments make clear that the restraining order may not be used to restrain workers or organizations from monitoring wage and safety laws, free speech or assembly, or rights under the National Labor Relations Act including lawful picketing. The amendment also reinforces an employer’s responsibilities under the Victims’ Employment Security and Safety Act (“VESSA”).

Impact on the Workforce

The VPA provides Illinois businesses with the ability to seek judicial protection from violent acts that could result in physical or emotional harm to employees, customers, and guests, and also to avoid damage to property. This important tool may be used to restrain an employee’s significant other, a disgruntled former employee, or an unruly customer.

Unfortunately, the amendments fail to curtail a labor union’s ability to intimidate or threaten workers who wish to remain union-free or customers who wish to conduct business free of harassment. Illinois has joined a growing list of states that are tackling the growing need to maintain a safe, non-violent workplace.

Federal: Attention Federal Contractor/Subcontractor Employers! In order to be in compliance with affirmative action obligations, applicable employers must start tracking those applicants and employees who are disabled and/or are qualified protected veterans, who choose to self-identify. This also means having a written affirmative action plan with utilization goals for these classes of individuals. For those employers who are affected, this will begin applying to all plans drafted as of March 24, 2014 and after. It is a good idea to start meeting with your IT and HR professionals now on how such data is going to be collected and analyzed for the upcoming new plans.

California: Effective January 1, 2014, California cracks down on those employers who choose to discriminate against or threaten those employees or applicants due to an employee’s or family member’s citizenship or immigration status or involvement in protecting such rights.

Illinois: As of January 1, 2014, employers now have the ability to seek protection orders against employees who create or threat workplace violence. Prior to now, this protection was not available for workplace violence created by employees. Starting June 1, 2014, employers must recognize the marital status of those employees who have entered into same-sex marriages.

New Jersey: Starting January 6, 2014, all employers with 50 or more employees must post and distribute (with a signed acknowledgment) the new NJ poster re: state and federal equal pay laws and discrimination prohibitions. Get your latest copy here.

Under Illinois’ concealed carry law, owners of private property that want to prohibit individuals from carrying concealed firearms must post the Illinois State Police approved sign. Even if the property is listed as an area where individuals are prohibited under the law from carrying concealed firearms, the owner of the property must still post the Illinois State Police approved sign.

The Illinois State Police have issued signage that can be used by businesses and property owners to prohibit individuals with licenses under Illinois’ concealed carry law from carrying concealed firearms on their property. The approved sign must be clearly and conspicuously posted at the entrance of a building, premises, or real property identified by the law or the owner as a prohibited area, unless the building or premises is a private residence/home. While the law is not clear whether the sign must be posted at every entrance to a building, to ensure compliance the business or owner of the property should post the approved sign at all entrances.

The approved sign requires a graphic design that is 4 inches in diameter depicting a handgun in black ink with a circle around it and a diagonal slash across the firearm in red ink. The graphic design must be on a white background with no text or markings within the one-inch area surrounding the graphic design (except for a reference to Illinois Code 430 ILCS 66/1). The approved sign must measure 4 inches x 6 inches. Below is an image of what the approved sign looks like.

Even though the earliest an individual may apply for a license to carry a concealed weapon is January 5, 2014, all businesses should be considering whether they are going to allow concealed firearms in the workplace. Regardless of the decision, employers will want to make changes to their policies and handbooks to reflect the decision. Additionally, if the business decides to prohibit all individuals from carrying concealed firearms on the premises, it must obtain and post the approved signage.

On August 16th, Gov. Quinn signed the Workplace Violence Prevention Act (WVPA or act). The WVPA is effective on January 1, 2014. The legislation applies to employers with five or more employees, and covers the prevention of violence, stalking and harassment. The WVPA allows employers to seek a court order of protection if the business or its employees are threatened by an individual, generally a disgruntled employee.

At least once a week, we counsel and advise employers about the disgruntled employee. It is always a difficult situation; do we keep an abusive employee or let them go and face their wrath? Employers are fearful that if they terminate a disgruntled employee, the individual will return to the business and harm both the people and property associated with the business. Now we work with our clients and local law enforcement agencies to effectuate the smoothest of separations, and try and prevent the individual from entering the property through anti-trespassing measures. We have also successfully fought in the courts for orders of protection. Unfortunately, until this act, there was no cogent statewide legislation for orders of protections that specifically addressed these non-domestic workplace scenarios. This act is meant to resolve this deficiency. As of January 1, 2014, employers who face a credible threat of violence may seek an order of protection to prevent and preclude the individual from entering the workplace and contacting their employee(s).

For an employer to obtain an order of protection under the act, they must show through an affidavit, to the satisfaction of a judge, that there is sufficient evidence that an employee has suffered a threat or there is a credible potential threat that could be faced by the workplace. A credible threat of violence is defined as a statement or course of conduct that does not serve a legitimate purpose and that causes a reasonable person to fear for the person’s safety or for the safety of the person’s immediate family.

This act does not supplant any current means or methods of seeking protection but gives employers both a shield and a sword to try and prevent workplace violence. In an era where employers are constantly subjected to additional legislation that makes it harder to do business, this is legislation that makes it easier. Put this one in the win column.

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Welcome to the Labor and Employment Law Update where attorneys from SmithAmundsen blog about management side labor and employment issues. We cover topics including addressing harassment and discrimination in the workplace, developing labor law, navigating through ADA(AA), FMLA and workers’ compensation issues, avoiding wage and hour landmines, key legislative, case law and regulatory changes and much more! Learn more about our firm at www.salawus.com.

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